This civil rights action arises out of the seizure of a truck in the possession of plaintiff Milton Justice, a/k/a Allahu Mohammad Akbar, by Joseph Fabey, an officer of the Philadelphia Police Department. Plaintiff alleges that, prior to his purchase of the truck the Police Department had obtained the truck in a raid on the Evans Transportation Company, seizing it as stolen property. Some time later, so plaintiff alleges, Zappone Brothers Corp., purchased the truck for the use of its parts from the Philadelphia Police Department Pound, without obtaining a certificate of title.
*fn1"
In May of 1976, it is further alleged, plaintiff purchased the truck from Zappone Brothers and apparently remained in possession until April 1981, at which time the Police Department ascertained the identity of the original owner of the stolen truck, seized it from plaintiff, and returned it to its Alabama owner. As a result, plaintiff contends that he has been deprived of his property without a hearing and hence without due process of law, and accordingly seeks redress under 42 U.S.C. § 1983.

Defendants Joseph Fabey and the City of Philadelphia have moved to dismiss plaintiff's action for failure to state a claim upon which relief may be granted.
*fn2"
While defendants' motion to dismiss was pending, plaintiff moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and moved to amend his complaint pursuant to Rule 15(a).

Section 2-403 of the Uniform Commercial Code, as adopted by Pennsylvania, 13 Pa.C.S.A. § 2403, provides that "a purchaser of goods acquires all title which his transferor had or had power to transfer..." Id. at § 2403(a). Further, a person with voidable title-that is, one who has obtained goods through the assent of the original owner but who may not have acquired good title-"has power to transfer a good title to a good faith purchaser for value." Id. One who has acquired goods by theft, however, cannot confer title by sale, even to a bona fide purchaser. Kenyatta v. Kelly, 375 F. Supp. 1175, 1179 (E.D.Pa.1974); Linwood Havestore Inc. v. Cannon, 427 Pa. 434, 235 A.2d 377 (1967).
*fn3"
Assuming that plaintiff was a bona fide purchaser for value from Zappone Brothers, who in turn purchased in good faith from the Philadelphia Police Department, the threshold question with respect to plaintiff's acquisition of some significant property interest is whether either transferor had power to convey at least a voidable title to the truck. Under Pennsylvania property law, it appears that since both Zappone Brothers and the City's possession of the truck are ultimately traceable to the initial theft, neither had power to transfer good title to plaintiff.

However, while plaintiff may not be able ultimately to establish good title to the seized truck under Pennsylvania law, this does not conclusively determine whether the police were required under the due process clause to afford him some kind of hearing when they sought to take possession of the truck. It is clear that the Fourteenth Amendment not only safeguards rights of undisputed ownership, but also extends to any other significant property interest. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 92, 92 S. Ct. 1983, 2000, 32 L. Ed. 2d 556 (1972). The fact that a possessor's claim of ownership may be disputed does not negate the existence of a property interest or his right to procedural safeguards mandated by the Fourteenth Amendment. Davis v. Fowler, 504 F. Supp. 502, 505 (D.Md.1980). As the Supreme Court has stated, "It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined." Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S. Ct. at 2709.

It is settled in Pennsylvania that possession of a chattel is deemed to be prima facie evidence of ownership.
*fn4"
Leitch v. Sanford Motor Truck Co., 279 Pa. 160, 123 A. 658 (1924). Thus, any person claiming ownership of property which is in the possession of another bears the burden of proving facts essential to his claim of ownership. In Re Carr's Estate, 371 Pa. 520, 92 A.2d 213 (1952). And while there appears to be no clear Pennsylvania authority on the matter, it would seem that one's earlier possession of property, which has subsequently been seized, is prima facie evidence of one's entitlement to the property. United States v. Wright, 197 U.S. App. D.C. 411, 610 F.2d 930, 939 (D.C.Cir.1979); Davis v. Fowler, supra, 504 F. Supp. at 505.

Plaintiff alleges that, at the time Officer Fabey seized his truck, he had enjoyed undisturbed possession of the truck for almost five years. He further alleges that during this time he expended a considerable amount of money to maintain and virtually reconstruct the vehicle.

Therefore, in light of Pennsylvania law which attaches a presumption of entitlement to one in possession, and the broad protection afforded by the Fourteenth Amendment, I find that plaintiff's complaint alleges facts constituting a property interest in the truck sufficient to impose upon government officials a due process obligation not to terminate plaintiff's possession of the truck without according him a hearing to adjudicate his claim of ownership.

Because due process is a flexible concept, however, the content and timing of constitutionally required protections will vary depending upon the exigencies of the particular situation presented. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972); Goss v. Lopez, 419 U.S. 565, 579, 95 S. Ct. 729, 738, 42 L. Ed. 2d 725 (1974). To determine the contours of the procedural protections which may be mandated in a given instance, it is necessary to balance the individual and governmental interests implicated in the dispute. Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The Supreme Court in Mathews, supra, set forth three factors to be examined in making such an evaluation:

First, the private interest that will be affected by the official action;

Second, the risk of an erroneous deprivation of such interest through the (use of existing) procedures, and the probable value, if any, of additional or substitute procedures; and,

Third, governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The considerations which justified the deferral of due process requirements in the above-mentioned cases are also present here. In the case at hand, Officer Fabey seized plaintiff's truck pursuant to a City ordinance governing the return of evidence. Because property of this kind can be easily removed from the jurisdiction or otherwise concealed, it is possible that a notice and hearing prior to the seizure would have resulted in the frustration of the City's affirmative obligation to return the vehicle promptly to its titleholder in Alabama. In this case, therefore, I conclude that (assuming the truth of the allegations in the complaint) the constitution required no more than-but also no less than-a hearing conducted reasonably promptly. See e.g., United States v. Eight Thousand Eight Hundred Fifty Dollars, 645 F.2d 836 (9th Cir. 1981); United States v. Premises Known as 608 Taylor Avenue, 584 F.2d 1297, 1304 (3rd Cir. 1978); Pollgreen v. Morris, 496 F. Supp. 1042 (S.D.Fla.1980).

Plaintiff has also moved to amend his complaint so that he may change the name of the party plaintiff from Milton Justice, a/k/a Allahu Mohammad Akbar to Allahu Mohammad Akbar, a/k/a Phillip Frederick Jordan. Plaintiff contends that his counsel was mistaken in his belief that his original name was Milton Justice. It is defendants' position, however, that Milton Justice and Phillip Frederick Jordan are two distinct persons, and that plaintiff's counsel is in fact attempting to substitute party plaintiffs. Defendants therefore request an evidentiary hearing so that the proper identity of the plaintiff may be conclusively established.

In the absence of undue prejudice to the opposing party, leave to amend should be liberally granted pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962). A determination whether the granting of an amendment would be potentially prejudicial requires consideration of the good faith of the party seeking to amend, Danzy v. Johnson, 417 F. Supp. 426 (E.D.Pa.1976), aff'd, 582 F.2d 1273 (3rd Cir. 1976); the extent to which there has been undue delay in proffering the amendment, L. D. Schreiber Cheese, Inc. v. Clearfield Cheese Co., 495 F. Supp. 313, 315 (W.D.Pa.1980); and the degree to which that amendment would delay final disposition of the case. Albee Homes, Inc. v. Lutman, 406 F.2d 11 (3rd Cir. 1969).

In the case at hand, plaintiff's motion to amend comes only four months after the filing of his original complaint and, if granted, would not delay disposition of the case. And although defendants assert that the motion to amend raises a factual question as to the proper identity of the plaintiff, no evidence has been presented which would suggest that plaintiff's counsel was not honestly mistaken in his knowledge of his client's former identity. Because this name change will in no way affect defendants' burden at trial, an evidentiary hearing prior to trial would not seem necessary. Accordingly, I will grant plaintiff's motion to amend, pursuant to Rule 15 of the Federal Rules of Civil Procedure.

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.